Judge hears arguments in Eastern Shore poultry runoff suit

Outcome could affect how chicken industry operates and how environmental groups use courts to enforce laws.

By Rona Kobell
onNovember 01, 2012

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After three years of legal wrangling, the question of whether an Eastern Shore chicken farmer violated the Clean Water Act and whether the company he grew the birds for was also responsible has finally headed to court.

In October, U.S. District Judge William Nickerson listened to arguments in Waterkeepers Alliance Inc. v. Alan and Kristin Hudson Farm and Perdue Farms, Inc., a suit that an environmental group brought against a Berlin chicken producer and the company for whom the husband-and-wife team grew their chickens.

The suit's outcome, unresolved at the time Bay Journal went to press, could change how the chicken industry has operated for decades — not just on Maryland's Eastern Shore, where the alleged Clean Water Act violations occurred, but nationwide. Conversely, it could also serve as a cautionary tale for environmental groups seeking to solve pollution problems through the courts. Before the trial, Nickerson warned that he could force the plaintiffs to pay the defendants' attorneys fees if the defendants prevail.

The case began in late 2009, when Assateague Coastkeeper Kathy Phillips and colleagues with the Waterkeeper Alliance, a network of local waterkeeper organizations based in New York, flew over the Eastern Shore looking for Clean Water Act violations from poultry farms. They were headed toward the Willards/Salisbury area, but something caught their eye over Berlin, MD.

It was a pile they suspected was chicken manure with a trench that led to a ditch that drained into Franklin Branch, a tributary of the Pocomoke River. State water testing on the farm south of the chicken houses revealed the levels of fecal coliform and E.coli were more than 100 times the acceptable standard.

The Maryland Department of the Environment later declared the pile was biosolids from a sewage treatment plant for nearby Ocean City. But the Waterkeepers maintained that the farmers, Alan and Kristin Hudson, were polluting waters of the state with their poultry operation. They also said that Perdue was responsible for the pollution, and that the Hudsons, contract poultry producers for Perdue, were in effect Perdue's employees.

Environmental groups have long assaulted the model for poultry growing on the Delmarva Peninsula, where thousands of farm families raise the birds as a second or even third source of income. Companies such as Perdue are "integrators." They supply the birds and the feed, but they do not own the waste that the birds produce. Poultry producers can use chicken manure to fertilize their fields, sell it to a neighbor or have Perdue clean out the house and dispose of the litter. Perdue will pick it up at no cost and recycle it into a fertilizer additive at its Perdue AgriRecycle facility in Delaware.

But the lack of regulations surrounding the manure and how it can be applied historically has meant that piles of manure sit uncovered in fields or are applied at inappropriate rates and times. When it rains, that manure — which is rich in nitrogen and phosphorus, two main Bay pollutants — runs off into the Chesapeake.

Almost immediately after the Waterkeepers filed the suit, public relations skirmishes began. Perdue helped establish a group, Save Farm Families, that hosted chicken dinners and bull roasts to raise money for the Hudsons' legal fees. A video on the Save Farm Families website portrayed the Hudsons as an All-American family, farming with their two young children on land that had been in the Hudson family for decades. The Waterkeepers took to blogs and press accounts to remind the public that manure accounts for 19 percent of the Chesapeake Bay's total nitrogen loads and 26 percent of its total phosphorus, according to EPA estimates. They maintained the case was about pollution and the agribusiness conglomerates responsible for it, and not an attack on family farms.

Because the state-funded University of Maryland's Environmental Law Clinic was representing the Waterkeepers, legislators in Annapolis threatened to strip the law clinic of its state funding. In a letter to the law school's dean, Phoebe Haddon, Maryland Gov. Martin O'Malley called the suit a misuse of taxpayer resources and suggested the clinic would be hewing closer to its mission of public service if it represented the Hudsons, not the Waterkeepers.

For all of the fireworks leading up to the trial, the case inside Judge Nickerson's courtroom was rather subdued. Witnesses from the state explained how they conduct water tests generally and at the Hudson farm, while representatives from Perdue explained how the company raises birds. Law students carried boxes and binders filled with paperwork that the case has generated.

Environmental groups used the occasion of the lawsuit to press the EPA to more comprehensively regulate chicken farms.

On Oct. 11, two days after the trial began, Environment Maryland and the Pew Environment Group at a press conference in Baltimore's Fell's Point announced that 35,000 Marylanders had signed a petition to keep manure out of the Chesapeake. Environment Maryland said it was planning to deliver the petitions to the EPA office in Washington.

"We can't let agribusiness treat the Chesapeake like its personal sewer," said Meg Cronin, the group's advocacy director. "This isn't about finger pointing. This is about stating the obvious — that every pollution source is going to have to cut back."